State v. Grams , 311 Mont. 102 ( 2002 )

Nos. 01-857 & 01-858
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 188STATE OF MONTANA,
Plaintiff and Respondent,
v.
PENNY LYNN GRAMS,
Defendant and Appellant.
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STATE OF MONTANA,
Plaintiff and Respondent,
v.
RICKY LEE GRAMS,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, Montana 59604
For Respondent:
Hon. Mike McGrath, Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney; Jorge Quintana, Deputy
County Attorney, Helena, Montana
Submitted on Briefs: March 28, 2002
Decided: August 29, 2002
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Ricky Lee Grams (“Rick”) and Penny Lynn Grams (“Penny”) appeal
an Order on Motion to Suppress from the First Judicial District
Court, Lewis and Clark County. We affirm.
¶2 The following issue is dispositive of this appeal:
¶3 Did the application for a search warrant provide sufficient
probable cause for its issuance?
BACKGROUND
¶4 On March 13, 2001, Helena Police Officer Mark Ekola applied
for a search warrant to search the residence of Rick and Penny
Grams (collectively, the “Grams”). Approximately one month
earlier, authorities arrested fourteen-year-old Z.D. for possession
of marijuana. Z.D. told Officer Ekola that he had twice purchased
marijuana from R.G., a fellow student at C.R. Anderson Middle
School. On March 8, 2001, authorities cited twelve-year-old M.J.,
another middle school student, for distributing marijuana on school
grounds.
¶5 Officer Ekola interviewed M.J. in the presence of her mother.
During the interview, M.J. told Officer Ekola that she also
obtained the marijuana from R.G. M.J. said that R.G. obtained her
marijuana from her father, Rick.
¶6 During his investigation, Officer Ekola learned that R.G. had
held a slumber party on February 24, 2001, at the Grams’ home.
R.G.’s middle school friends, A.E., B.C., S.P., A.R. and S.R.,
attended the party. All the girls were between the ages of twelve
and thirteen.
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¶7 S.R. told Officer Ekola that R.G. took them into her father’s
bedroom, where she pointed out a file cabinet. R.G. removed a
large freezer bag full of apparent marijuana from the top drawer of
the cabinet. R.G. told S.R. that her father approved of her
smoking marijuana and did not care if she went into his bedroom to
obtain the marijuana. The girls attending the party told Officer
Ekola that they smoked marijuana during that evening. Some of the
youth told Officer Ekola that during the evening, Rick and Penny,
and two unknown males, sat in the living room in front of the girls
and smoked marijuana.
¶8 Based on this information, Officer Ekola obtained a warrant to
search the Grams’ residence for marijuana and drug paraphernalia.
On March 19, 2001, the State of Montana filed a complaint in
justice court charging Rick and Penny with the following offenses:
endangering the welfare of a child, a misdemeanor; criminal
possession of dangerous drugs, a misdemeanor; and criminal
possession of drug paraphernalia, a misdemeanor. The justice court
conducted a bench trial on June 6, 2001. At the conclusion of
trial, the State moved to dismiss the charge of endangering the
welfare of a child, which the court granted. The court found both
Rick and Penny guilty of criminal possession of dangerous drugs and
criminal possession of drug paraphernalia. On June 19, 2001, the
court imposed sentence. Rick and Penny then filed a notice of
appeal, and the justice court stayed their sentences pending the
appeal to the District Court.
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¶9 The District Court set a scheduling conference for July 16,
2001. After the scheduling conference, the court set a jury trial
for October 1, 2001. On August 30, 2001, Rick and Penny filed a
motion to suppress all the evidence that law enforcement officers
seized from their home. The Grams argued that probable cause did
not support the search warrant. After hearing briefs on this
matter, the District Court entered an order denying the Grams’
motion to suppress. The Grams appeal.
STANDARD OF REVIEW
¶10 When reviewing a district court’s denial of a motion to
suppress, we determine whether the court’s interpretation and
application of the law is correct. See State v. Reesman, 2000 MT
243, ¶ 18, 301 Mont. 408, ¶ 18, 10 P.3d 83, ¶ 18. In addition, our
function as a reviewing court is ultimately to ensure that the
lower court had a “substantial basis” to determine that probable
cause existed. See Reesman, ¶ 19. In our review, we will pay
great deference to a court’s determination that probable cause
existed and draw every reasonable inference possible to support
that determination. See Reesman, ¶ 19.
DISCUSSION
¶11 Did the application for a search warrant provide sufficient
probable cause for its issuance?
¶12 The District Court held that the application for the search
warrant provided sufficient legitimate information to uphold the
validity of the search warrant. The court noted that the
application contained two hearsay statements. In particular, M.J.
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stated that R.G. had told her that she obtains marijuana from her
father and that R.G. told everyone that her father approves of her
smoking marijuana. The court concluded that the statement by S.R.
that R.G. took her and the other girls to Rick’s bedroom and
removed a large freezer bag of marijuana from the top drawer of his
filing cabinet corroborated M.J.’s statement. It also concluded
that the statements of R.G.’s friends that they smoked marijuana at
a sleep-over party at the Grams’ residence and that Rick and Penny
smoked marijuana in front of them corroborated the statements
about Rick approving of R.G. smoking marijuana.
¶13 Rick and Penny disagree with the District Court's conclusion
that there was corroboration of the two hearsay statements. They
maintain that the application did not show how S.R. could have
personal knowledge that (1) the bedroom was Rick’s, (2) M.J.
removed the alleged freezer bag of marijuana from his filing
cabinet and (3) the bag actually contained marijuana. The Grams
also contend that, without independent law enforcement
investigation of the hearsay statements, the girls’ statements that
they smoked marijuana all evening did not provide sufficient
corroboration.
¶14 In order for an application for a search warrant to be
sufficient, it must state facts sufficient to show probable cause
for the issuance of the warrant. See § 46-5-221, MCA; State v.
Kuneff, 1998 MT 287, ¶ 21, 291 Mont. 474, ¶ 21, 970 P.2d 556, ¶ 21.
When deciding whether probable cause existed for issuance of a
warrant, we follow the “totality of the circumstances” test set
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forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S. Ct. 2317,
76 L. Ed. 2d 527. See State v. Crowder (1991), 248 Mont. 169, 173,
810 P.2d 299, 302. Under this test, to determine whether a court
should issue a search warrant, “the judge evaluates the facts
asserted within the four corners of the application and makes a
practical, common-sense decision as to whether there is a fair
probability that incriminating items will be found in the place to
which entry is sought.” State v. Worrall, 1999 MT 55, ¶ 28, 293
Mont. 439, ¶ 28, 976 P.2d 968, ¶ 28 (citing State v. Sundberg
(1988), 235 Mont. 115, 119, 765 P.2d 736, 739).
¶15 As a reviewing court, we too must look solely to the
information given to the impartial magistrate and to the four
corners of the search warrant application. See Crowder, 248 Mont.
at 173, 810 P.2d at 302 (citing Sundberg, 235 Mont. at 121, 765
P.2d at 740). We will not review a search warrant application
sentence by sentence, but, rather, we will examine the entire
affidavit to determine whether the issuing magistrate had a
substantial basis to conclude that probable cause existed. See
State v. Hulbert (1994), 265 Mont. 317, 323, 877 P.2d 25, 29.
¶16 Not all evidence in the application for the search warrant was
hearsay. The application noted that five girls told law
enforcement that they had smoked marijuana at the Grams’ home and
that the Grams smoked marijuana in front of them. This case turns
on whether this testimony provided the magistrate sufficient
probable cause to issue a search warrant.
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¶17 We set forth a step-by-step analysis in Reesman for
determining whether an informant’s information is sufficient to
establish probable cause. The initial question is whether the
informants were anonymous. See Reesman, ¶ 28. Here, the five
girls, A.E., B.C., S.P., A.R. and S.R., who attended the slumber
party are informants. None of them are anonymous, as all five
spoke directly with law enforcement officers and the application in
support of the search warrant identifies all five.
¶18 If the informants are not anonymous, as is the case here, we
then turn to a second threshold question: “is the informant’s
information based on his or her personal observation of the
described criminal activity? In other words, is the basis of the
information hearsay?” Reesman, ¶ 29. A.E., B.C., S.P., A.R. and
S.R. base their statements on personal observation; they admitted
smoking marijuana at Rick’s house and told law enforcement officers
that Rick and Penny smoked marijuana in front of them.
¶19 Because the girls' statements were based on first-hand
evidence, the final question is whether the informant is a reliable
source of such information. See Reesman, ¶ 31. A magistrate can
deem an informant reliable if: (1) an officer’s application for a
search warrant identifies an informant as a “confidential
informant” who has provided reliable and accurate information to
law enforcement officers in the past; (2) the informant makes an
unequivocal admission against interest; or (3) the informant was
motivated by good citizenship and demonstrates a sufficient
understanding of the circumstances under which the informant came
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to know the information. See Reesman, ¶ 32-34. If the informant
is deemed reliable under one of these three scenarios, then the
police need not independently corroborate the informant’s
information. See Reesman, ¶ 35. Here, the five girls admitted
smoking marijuana, an illegal substance. These admissions
constituted an unequivocal admission against their interest.
¶20 For these reasons, we conclude that the girls’ admissions that
they smoked marijuana in the Grams’ presence, while the Grams also
smoked marijuana, in the Grams’ home, provided sufficient probable
cause to obtain a search warrant. Because these admissions
constituted sufficient probable cause, we need not address the
adequacy of the hearsay statements concerning admissions by M.J.
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¶21 Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JIM RICE
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